Excerpt:.....as to whether a man alive or dead is in issue - it is always for party who pleads that a man died at particular time to show date on which death took place - no presumption that 'party to appeal' died on date when court delivered judgment in appeal - petition dismissed. - - during the course of the suit it was stated that velayudhan had disappeared on 24-11-1948. lakshmi complained that he had been spirited away by the petitioner but the latter repudiated thesuggestion and even stated that he had reason to believe that the lunatic was still alive. ramrup gir, 50 mlj 289 :air 1926 pc 9: now upon this question there is, their lordships are satisfied, no difference between the law of india as declared in the evidence act and the law of england .and, searching for an explanation..........only to a case where it is claimed that the person was not heard of within a period of seven years died at a particular time within that period and that where that period had expired, the only presumption will be that at the end of the seventh year the man died. reliance is placed in support of this contention upon the decision in balnaicken v. achama naicken, 41 mlj 295: air 1921 mad 285 where, after referring to the rule that there was a presumption that a person was dead when he or she has not been heard of for seven years, and that there was no presumption as to the particular date on which he or she died, the learned judges observed :'but these remarks apply only when the point of time at which the death has to be placed falls necessarily within the seven years.....in our.....

Judgment:ORDER

S. Ramachandra Iyer, C.J.

1. This revision petition, though devoid of merits, raises a question of law.

One Velayudhan PilIai, a lunatic, filed through his wife Lakshmi, as his next friend, O. S. No. 194 of 1122. (M.E) in the Sub Court, Nagarcoil, a suit for partition or family properties against the petitioner herein. During the course of the suit it was stated that Velayudhan had disappeared on 24-11-1948. Lakshmi complained that he had been spirited away by the petitioner but the latter repudiated thesuggestion and even stated that he had reason to believe that the lunatic was still alive. The trial Court dismissed the suit on 25-11-1954. Lakshmi, continuing to represent Velayudham as his next friend, took up the matter in appeal to this Court in A.S. No. 665 of 1956. No objection was taken to the maintainability of the appeal on the ground that Velayudham had died, and the appeal came up for hearing before Rajamannar C. J, and Veeraswami J. who by their judgment dated 14-9-1960 allowed the appeal and passed a preliminary decree for partition.

It will be noticed that by the time the judgment in the appeal was delivered, more than seven years had elapsed since the disappearance of Velayudham, who, it is admitted now, never returned to Lakshmi thereafter. Atter the passing of the preliminary decree, steps were taken by Lakshmi to have a final decree passed. She also filed an execution petition for recovery of the costs. It was at that stage that the petitioner filed an application before the lower Court for declaring that the preliminary decree passed by this Court on 14-9-1960 was null and void, as the suit had abated, Velayudham being presumed to have died in the year 1955, that is, seven years after the date of his disappearance. The learned Subordinate Judge rejected that petition and hence this civil revision petition.

2. The sole point for consideration is, whether it can now be presumed that this Court had no jurisdiction to dispose of the appeal on the ground that one of the parties to the appeal, namely, Velayudhan, should be presumed to have died before the hearing thereof. The rule as to the burden of proving the death of a person is contained in Sections 107 and 108 of the Indian Evidence Act. They can be conveniently set out here:

'107. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. Provided that when the question is wnether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.'

The latter section shows that the presumption arises only when the question as to whether a man is alive or dead is in issue. In other words, there is no presumption, so long as there is no dispute about a man being alive, that a man died after a particular time after his disappearance. In the present case no question arose before this Court when it was dealing with the appeal, whether the appellant Velayudham was alive or dead. If really it was the petitioner's case that he was dead, he should have raised that question before the appeal was disposed of, and there will be occasion then to raise the presumption. He not having done so, it stands to reason that he cannot rely on any presumption in law to show that he must have died long prior to the judgment. As I indicated earlier, the question whetner he was alive or dead arose only at the time when l.A. No. 10 of 1961 was filed before the lower Court. That was long after the judgment of this Court in appeal.

3. It is argued for the petitioner that as under Section 108 of the Evidence Act a man who has not been heard of for seven years should be presumed dead, one should presume that Velayudham was dead in the year 1955, and if so much can be accepted, the judgment in the appeal without impleading his legal representatives would be void. In support of this contention Mr. Rajagopala Aiyar who appeared for the petitioner has referred to a passage in Tayloron Evidence, 12th Edn. page 180, where the learned author has stated:

'Although the presumption of life will continue for a period exceeding half a century, if no proof be given either that the party whose death is relied upon has not been heard of by those persons who would naturally have heard of him had he been alive, or, at least, that search has been ineffectually made to find him, this presumption will be bounded within far shorter limits, if evidence be furnished of his continuous unexplained absence from home, and of the non-receipt of intelligence concerning him. In such a case, after the lapse of seven years, the presumption of life ceases, and the burden of proof is devolved on the party denying the death.... But although a person, who has not been heard of for seven years, is presumed to be dead, the law raises no presumption as to the time of his death; and therefore, if any one has to establish the precise period during those seven years, at which such person died, he must do so by evidence, and can neither rely, on the one hand, upon the presumption of death, nor on the other, upon the presumption of the continuance of life.'

Mr. Rajagopaia Aiyar argues that the rule that there is no presumption as to the date of death applies only to a case where it is claimed that the person was not heard of within a period of seven years died at a particular time within that period and that where that period had expired, the only presumption will be that at the end of the seventh year the man died. Reliance is placed in support of this contention upon the decision in Balnaicken v. Achama Naicken, 41 MLJ 295: AIR 1921 Mad 285 where, after referring to the rule that there was a presumption that a person was dead when he or she has not been heard of for seven years, and that there was no presumption as to the particular date on which he or she died, the learned Judges observed :

'But these remarks apply only when the point of time at which the death has to be placed falls necessarily within the seven years.....In our opinion, in a case where thepoint of time to which the death has to be referred, may be placed indifferently either during the seven years or after the lapse of the seven years (it not being necessary for the plaintiff to show that the person lived during the seven years), there is a presumption after the lapse of the seven years in favour of the death and it is for the other side to displace the presumption and the party relying on the presumption is entitled to succeed if no evidence is offered by the other side.'

This decision was followed by Madhavan Nair J. in S.a. No. 55 of 1922 47 MLJ (SN) 23, where it was held that at the end of seven years from the date of disappearance of a legatee, the presumption of death arose and the burden would be on the party who challenged the will to prove that he died at some later date. It will be noticed that in both the cases the presumption under Section 108 was applied when the question actually arose before the court. Therefore these cases are not authorities for the proposition that there is a fixed rule that the man died immediately after the lapse of seven years from the date of his disappearance.

Section 108 lays down a presumption when the question as to a person's existence is raised in issue before the Court. If the question is raised before the Court at a particular point of time, and more than seven years had elapsed by that time from the time when a man was last heard of, the presumption will be that he had died before the date when the question was raised. That is not the same thing as saying that when such a question is raised longafter the seven year period is over there is a furtner presumption that he had died at any particular time during that period or at the end of seven years from the date of disappearance. In Halsbury's Laws of England, 3rd Edn. Vol. 15, dealing with this question, it is stated (at page345):

'There is no legal presumption either that the person concerned was alive upto the end of the period of not less than seven years, or that he died at any particular point of time during such period, the only presumption being that he was dead 'at the time the question arose', it he has not been heard of during the preceding seven years. If it is necessary to establish that a person died at any particular date within the period of seven years, this must be proved as a fact by evidence raising that inference.....' (the italics (Here in single quotation marks Ed.) are mine).

'Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the law of England .....and, searching for an explanation of this very persistent heresy their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re, Phene's trusts, 1870 5 Ch. A 139. runs as folows: 'If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption tut of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. Following these words, it is constantly assumed--not perhaps unnaturally--that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This of course is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, it, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one 'of not less than seven years' '.

It is implicit in the observations stated above that the presumption can arise only when the question for determination, whether a man or woman is alive or dead, is raised.

In re: Seshi Ammal : (1958)2MLJ53 , Subrahmanyam J. referred to the presumption under Section 108 and stated that it would extend to the fact of death and not to the time of death at any particular period. The learned Judge observed that the exact time of death was not a matter for presumption but of proof by evidence by a person who claims a right for the establishment of which the fact is essential. In a more recent case Gnanamuthu v. Anthoni, : AIR1960Mad430 , Ramaswami J. after a full analysis of the provisions of Sections 107 and 108 observed that the presumption under Section 108 would only be as to the fact of death at the time the question is raised |and not at any particular antecedent time.

4. These cases show beyond doubt that it is always for the party who pleads that a man died at a particular time,to show the date on which the death took place. It makes no difference whether the date of death pleaded is within or beyond the period of seven years from the time the person was last heard of. This question arose in a somewhat acute form in Jyotirmony v. Biswanath, 53 Cal WN 113, where the point was whether in a case where the death was presumed under Section 108 and legal representatives of the deceased party were sought to be impleaded, there was scope for the operation of either the dismissal as contemplated in Section 3 of the Limitation Act or the abatement as provided for in Rule 3 of Order XXII C. P. Code. It was held that while under Section 108 of the Evidence Act there could be a presumption of death of a person who had not been heard for more than seven years, there was no presumption regarding the date and time of his death and that so long as the Court has not been affirmatively convienced that the application to bring on record the legal representatives had not been brought within the period of ninety days from the date of death, it should direct the legal representatives to be impleaded.

5. It follows from the decisions set out above, that there can be no presumption that Velayudham died on the date when this Court delivered the judgment in the appeal. The preliminary decree passed by this Court is theretore valid. The civil revision petition fails and is dismissed with costs; advocate's fee Rs. 100.